CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA

INTOXICATION AS DEFENCE UNDER IPC 1860

SUBMITTED TO: SUBMITTED BY

Assistant Prof. Preety Anand Aditya Pratap Singh
Faculty of Criminal Law Roll No.-2209
Session: 2019-2024 Semester- 3rd
 Contents
Table of Contents
Introduction ..............................................................................................................................................7
Intoxication and Intention .......................................................................................................................8
a) Intoxication as a denial of mens rea:...........................................................................................8
b) Involuntary intoxication is not a defense if mens rea is present: ..............................................9

c) The rule laid down in Director of Public Prosecution v. Majewski11: ....................................9

d) Forseeability Test: ......................................................................................................................11
e) Intoxication and defences: .........................................................................................................11
f) Intoxication induced with the intention of committing crime: ...............................................12
Intoxication and concurrence ................................................................................................................13
Conclusion ...............................................................................................................................................14
 Declaration By The Candidate

I, hereby, declare that the work reported in the B.B.A. L.L.B (Hons.) Project Report titled

“INTOXICATION AS DEFENSE UNDER INDIAN PENAL CODE” submitted at

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA is an authentic record of my

work carried out under the supervision of Ms Preety Anand. I have not submitted

this work elsewhere for any other degree or diploma. I am fully responsible for the contents

of my Project Report.

(Signature of the Candidate)

Aditya Pratap Singh (2209)

B.B.A. L.L.B., 2nd year

SEMESTER -3rd

CNLU, Patna
 ACKNOWLEDGEMENT

I would like to show my gratitude towards my guide

, under whose able guidance, I structured my project.

I owe the present accomplishment of my project to our CNLU librarians and staff who provided
me the online remote access which helped me immensely with the material in this regard and
without whom I couldn’t have completed it in the present way.

I would also like to extend gratitude to my batch mates and helpful seniors and all those unseen
hands that have helped me at different stages of my project.

THANK YOU,
 Research Methodology

Mostly doctrinal research and primary method of research was adopted in making of this project.

Few primary and secondary methods were used. Some literary works and

books and articles were referred and the internet through various websites

was used extensively for the collection of data which was required for the

study needed for this research.

 Research Questions

1. What is intoxication as a concept of defense under IPC?

2. What is the role of intention and its relation with intoxication?
3. How to establish Mens Rea and the effect of intoxication on commission
of an offence?
4. What is the test of foreseeability to determine the condition of
intoxication?
Intoxication as a Defence

Introduction

There is general agreement that causing another person's death with deliberate intent is culpable as
one of the most serious offences. This reflects the high value that society puts on each
individual's life and the fact that to kill someone is the most permanent of injuries.

Intoxication is perceived as a state of mind in which a person loses self-control and his ability to
judge. In order for a person escape liability under S. 85 of the IPC on grounds of involuntary
intoxication he must be able to fulfil the following three conditions:

a) The person should be incapable of knowing the nature of the act.

b) The person should be incapable of acting and thinking in a responsible manner and in all
possibility isn’t aware that his act is prohibited by the law.
c) The source of intoxication must have been given forcefully or someone should have induced
the person to consume it.1

Section 85 essentially deals with offences committed under the influence of drugs or alcohol.
Such intoxication should be caused by fraud or coercion and such intoxication should limit his
ability to decide what is right and what is wrong. Section 86 deals with intoxication which is
self- induced. Such intoxication which results in an offence follows the principle that onewho
sins when drunk be punished when he is sober.2 For example, if a person who has consumed too
much liquor, takes a knife from his house and goes with the intention to kill a person but instead
kills a person who tried to pacify him, his act would amount to murder once he is sober. However,
in Delirium tremens3, a form of insanity arising out of habitual drinking which makes a person
reach a degree of madness whereby he is incapable of distinguishing between right an

1
Michael J. Allen, Textbook on Criminal Law, (London: Blackstone Press Ltd., 1999, 5th edn.).
2
Qui peccat ebius luat sobrius.
3
Glanville Williams, “Involuntary intoxication ”, (1989) 105 L.Q.R. 387.
wrong, the disease is perceived as insanity protanto and the person’s case is given the same
treatment as that of a case of involuntary drunkenness.

Intoxication and Intention

In Basdev v. State of Pepsu4 the court said:

“Motive is something which prompts a man to form an intention. Knowledge is an awareness of
the consequences of the act. In many cases intention and knowledge merge into each other and
mean the same thing more or less and intention cam be presumed from knowledge. The
demarcating line between intention and knowledge is no doubt thin but it is not difficult to
perceive that they connote different things.”

a) Intoxication as a denial of mens rea:

The concept of intoxication defense under criminal law is not considered a defense either by
excuse or exculpation. It is more usually considered an aggravating factor that increases the
degree of social disapproval reflected in the sentence imposed by the court.

In the case of A-G for Northern Ireland v. Gallagher5 Lord Denning stated two examples. The
first related to a nurse who got so drunk at a christening ceremony that she put the baby on the
fire thinking it was a log of wood. The second related to an intoxicated person who thought that
his friend lying on the bed was a theatrical dummy and stabbed him to death. According to Lord
Denning there would be a defence to murder in each of these cases. It was stated that drunkenness
makes mistakes much more conceivable.6 In the case of Director of Public Prosecution v. Beard7
the accused raped and murdered a 13 years old girl and took the plea of intoxication. It was held
that intoxication may only be a basis for defence if the accused was unable to form mens rea.
There have been considerable developments in the field of criminal law in recent cases such as,
Soolkal & another v. The State8, where the court has asked the accused to show specific evidence
that he was intoxicated and lacked mens rea. The court also stated that the burden of proof in
such cases resting on the defendant will not be satisfied only

4
(1974) 3 SCC 490.
5
[1961] 3 All ER 299.
6
Michael J. Allen, Textbook on Criminal Law, (London: Blackstone Press Ltd., 1999, 5th edn.).
7
[1920] 2 All ER 479 (HL).
8
[1999] 1 WLR 2011, PC.
by offering evidence that the accused had consumed alcohol or by a loss of memory due to
intoxication.

b) Involuntary intoxication is not a defense if mens rea is present:

In R v Kingston9 it was held that involuntary intoxication is no defence to a criminal charge and
is only relevant insofar as it disproves or proves mens rea. An intent produced by the
surreptitious administration of drink or drugs is still a criminal intent. After the judgment of the
case, involuntary intoxication is to be considered as a mitigating factor in sentencing.

The only difficulty arises in the case of the mandatory life sentence for murder where involuntary
intoxication cannot be taken into account at the sentencing stage. It was for this reason alone that
the House had any hesitation in rejecting the creation of a new defence. In the end Lord Mustill
concluded that this was not a sufficient reason to force on the theory and practice of the criminal
law an exception which would otherwise be unjustified.

If a drunk person causes a fatal injury to another he cannot be convicted under s.302 I.P.C as he
did not have the requisite intent to kill but could still be convicted under s. 304 Part II, I.P.C., by
virtue of imputed knowledge under s. 86 I.P.C..10

Lord Denning has said:

“When people say that a man must be taken to intend the natural consequences of his acts, they
fall into error: there is no ‘must’ about it. It is only ‘may’.

c) The rule laid down in Director of Public Prosecution v. Majewski11:

This is yet another landmark case relating to voluntary intoxication and plea of intoxication as
defence. It was said in this case that evidence of self-induced intoxication negates mens rea if
the offence is of specific intent. In Majewski what the house was dealing with was whether the
house could rely by way of defence on the fact that he had voluntarily taken drink. However
other dictas have suggested that the accused is held liable without the usual mens rea because he
has taken the drink and that in itself is the foundation of liability. Such an approach deems the
defendant’s negligence in becoming voluntarily intoxicated his ‘prior fault’ to be sufficient

9
[1994] 3 All ER 353, HL.
10
Ratanlal and Dhirajlal, The Indian Penal Code, (Nagpur: Wadhwa & co.,13th ed., 2004) pp 124.
11
[1976] 2 All ER 142.
mens rea for the crime. This is despite the fact that there is no contemporaneity between the fault
in becoming intoxicated and commission of actus reus of the crime. There has been an alternative
view in Majewski which holds that it does not create the rule of substantive law, but one of
evidence. A specific intent offence is one where evidence of voluntary intoxication negativing
mens rea is a defence and designation of crimes as requiring, or not requiring, specific intent is
based on no principle but on policy.12

(c) (i) Law commission’s analysis of Majewski: The Law Commission, having surveyed the
operation on the law on intoxication, considered options for reform of law on the same. The Law
Commission was left with two alternatives.

First that the Majewski distinction should simply be abolished without replacement. The effect of
this would be to return to established principles and to assert that that the defendant should be
acquitted if he lacked the relevant mental element. The other alternative was to go ahead with
the creation of a new offense which the Law commission has preferred to do.

It is submitted that going ahead with the first reform is indicative of the fact that one is diluting
the acknowledged policy that if a defendant causes harm while intoxicated, some criminal
sanction should be imposed, if only for public safety. This might have been a reason for going
for the next option.

The option of creation of a new offense has been recommended before by the Butler Committee
and by a minority of the C.L.R.C. The Law Commission’s preferred option for reform is to
punish those who cause serious harm, while substantially and deliberately intoxicated, even
though the defendant acted in a state of automatism.

Therefore, a possible reason for including automatism could be that if such liability were
excluded, then greater possibility of the defendant being acquitted under the defense of
involuntary intoxication arises.

12
Michael J. Allen, Textbook on Criminal Law, (London: Blackstone Press Ltd., 1999, 5th edn.).
Thus, Law Commission’s recommendation of the creation of a new offense seems to be a
preferred option as clearly an unqualified abolition of the Majewski rule without replacement by
another offense is not a practicable solution.

d) Forseeability Test:
The presence or absence of liability may be said to rest on a foreseeability test. The fact that the
consumption of alcohol or the ingestion of drugs may cause loss of control is universal
knowledge. Thus, anyone who knowingly consumes such intoxicating substances is, at the very
least, committing a rash and negligent act averse to the possibility of losing control. One
therefore attracts the charge of deliberate intent by consuming substances known to lead to such
consequences. Moreover, loss of control may not be instantaneous and without symptoms.
However, combined with the issue of involuntary consumption, the position becomes quite
contentious. Even states with a strict liability offence excluding drunkenness as a defence
generally require prosecution of the person who laced the drinks without the knowledge of the
person who ultimately consumed it. This general rule may, however, open a Pandora's box with a
convenient justification available even to such offenders who have only marginally exceeded the
prescribed alcohol limit for drivers. In most legal systems, therefore, involuntary loss of control
is restricted to cases where there is no real loss of control and in any case exists with noticeable
symptoms. Thus, for example, many states have prescribed a low threshold for the blood alcohol
level attracting the commission of an offence of driving under the influence of alcohol so that
people may be liable for exceeding the prescribed limit even without the tangible symptomatic
signs. More generally, this defence would be not be available to people experiencing symptoms
of intoxication who continued to consume the laced drink since they are expected to be aware of
the consequences. Equally, they are expected to recognize that they are affected by an unknown
substance and resist from beginning an activity such as driving as this would fail to attract the
defence of involuntary consumption. The basis for law in this area rests on the principle of the
good of the general public as against the rights of an individual who recklessly exposes the public
to danger.13

e) Intoxication and defences:

(i) Statutory defences: In cases where the statute expressly mentions that a particular belief
should be a defence to a charge the Majewski rule does not apply. In English law, the

13
P.S.A. Pillai, Criminal Law, (New Delhi: Butterworths, 2000).
controversial Jaggard v Dickinson14 held that, for the purposes of the statutory defence of lawful
excuse, a drunken belief will found the defence even though this allows drunkenness to negate
basic intent. This is limited authority and does not affect the generality of the defence. If the
accused in a state of intoxication believes a thing to be his own when it is someone else’s and
destroys it this belief cannot claim a defence as this would be considered an act of recklessness.
However if the accused is under the impression that the thing belongs to a third person and
damages the thing with the consent of the third person he is entitled to a defence[24].

(ii) Common Law defences: The common law goes contrary to statutory defence. Although it
is now settled that when the accused sets up self- defence, he is to be judged on the facts as he
believed them to be, whether reasonably or not and any mistake arising from voluntary
intoxication cannot be relied on as a basis for defence even on charge of murder or other crime
requiring specific intent as in case of O’Grady.15 This was plainly obiter because the appellant
had been acquitted of murder and was appealing against his conviction for manslaughter but in
O’Connor16 the court, inexplicably treated it as binding by quashing the conviction of murder
on another ground. The dictum assumes that if self- defence is a defence to murder it must also
be a defence to manslaughter, but this is not necessarily so because an act done in self-defence
arising from a grossly negligent mistake should be manslaughter by gross negligence.[27]

f) Intoxication induced with the intention of committing crime:

The question arising here is whether a person has a defence if he voluntarily intoxicates himself
with the intention to commit a crime in a state of insanity? This concept is popularly known as
‘Dutch Courage’. The problem was brought to light in the case of A-G for Northern Ireland v.
Gallagher17 where the accused wanting to kill his wife bought a knife and a bottle of whisky. He
got drunk on the whisky and killed his wife. He took the defence of insanity due to intoxication
which had made him incapable of forming necessary intent at the time of the act. The court of
criminal appeal in Northern Ireland reversed the accused conviction from murder on the ground
that the judge had misdirected the jury in telling them to apply the M’ Naughton

14
[1980] 3 All ER 399.
15
1985 QB 995.
16
1991 CLR 135.
17
[1961] 3 All ER 299.
rules18, to the accused state of mind at the time before he took the alcohol and not at the time
of committing the act.

Intoxication and concurrence

a) Intoxication causes automatism: The accused in a drunken state suffers concussion and
commits an offence in a state of automatism resulting from the concussion. In Stripp19, the
court decided that the accused should be acquitted on grounds of automatism since intoxication
was too remote from the act. The law commission held that the case suggests the possibility
that where there is a course of automatism clearly separable in time or effect from the
intoxication and supported by a foundation of evidence, then a defence of automatism may be
available, but when causal factors are less easily separable it would seem that the presence of
the intoxication will be on policy grounds lead to adoption of Majewski rule to exclude reliance
on automatism.

b) Insanity causes intoxication or automatism: Insanity mentioned here doesn’t apply to

McNaughton rules as here insanity relates to a particular criminal act, whereas getting drunk
or causing oneself concussion is probably not a criminal act at all and certainly not concerned
with the Indian Penal Code.20

18
The M'Naghten Rules are used to establish insanity as an excuse to potential criminal liability, but the
definitional criteria establish insanity in the legal and not the psychological sense.
19
(1979) Cr. App R 318.
20
K.D.Gaur, Criminal Law: Cases and Materials, (New Delhi: Butterworths, 1999).
Conclusion
In different times and in different societies, the response towards public drunkenness has been on
a scale of diametrically opposite attitudes. While certain cultures and societies have accepted
alcohol consumption or drug-taking as a part of their religious or social rites, such behaviour has
attracted an entirely contrary response extending to its denigration as immoral and sinful. The
norms of propriety have therefore always been dynamic and modern law has therefore
appropriately steered clear of reflecting these wavering standards and criminalising intoxication
per se but by adopting the more neutral standards based on whether an act arising from
intoxication was voluntary or involuntary. The viability of any defence of a criminal act therefore
rests on a combination of the voluntary vs. involuntary principle and the universal knowledge
that consumption of intoxicants is likely to induce loss of control. The evolution of law in this
area reflects a careful application of these standards.

10